Lessig on the limits of copyright (Crossposted at CT)

This is my second report on last week’s Creative Commons conference. Lessig’s closing lecture was given in the Banco court of the Queensland Supreme Court (very plush – those lawyers don’t stint themselves) and was focused on traditional copyright issues . For Brisbane readers, an interesting tidbit titbit was that we haven’t seen OUTFOXED: Rupert Murdoch’s War on Journalism because neither the Courier-Mail nor the Australian (both Murdoch-owned) would carry more than minimal ads for it. One of the costs of being in a one-newspaper town.

The main point of the lecture was a historical survey of the relentless extension of copyright, along with some discussions of a failed attempt to stop this in the case of Eldred vs Ashcroft. This case is notable for the fact that, as has happened before, the economics profession almost unanimously supported the losing side. As Lessig argued copyright has been extended in length, scope and force to the extent that nowadays virtually everything is copyright, virtually forever.

Given that the defenders of unlimited copyright are interested mainly in protecting the merchandise markets for Mickey Mouse and Winnie the Pooh, it’s often struck me that the sensible political resolution would be to concede defeat on this point, and seek to liberalise copyright for the 99 per cent of literary and artistic output that doesn’t have such huge monopoly value. One step in this direction, which Lessig discussed in his talk, is the case of Kahle v. Ashcroft which challenges changes to U.S. copyright law that have created a large class of “orphan works.” Orphan works are books, films, music, and other creative works which are out of print and no longer commercially available, but which are still regulated by copyright.

As I’ve said previously, in the end, I don’t think either law or technology will be decisive here. Rather it’s that the value of being freely connected to a huge network will exceed any benefits that can be obtained by gating off a particular part of the network and demanding payment for access. After all, the reason we have an open Internet is that it drove proprietary networks out of business or else absorbed them. Attempts to create “walled gardens” within the Internet haven’t been abandoned entirely, but they haven’t prospered either.

In this context, the most exciting feature of the conference was the launch of the Australian version of the Creative Commons licence. Widespread voluntary adoption of this kind of license will render measures like the extension of copyright irrelevant. In this context, the version of the license I particularly like the “Share Alike” version, which resembles the GNU public licence in requiring derivative users to adopt a similarly open licence. The greater the volume of material with this kind of licence that is out there, the greater the incentive to make use of it, even at the cost of forgoing commercial copyrights. Since most commercial culture depends ultimately on unpaid appropriation of older material, the effects will be cumulative (or, in today’s popular jargon, ‘viral’)[1].

As I mentioned, I was struck by the quality of Lessig’s presentation. He’s a great speaker and I was so struck by the elegance of his minimalist Powerpoint presentations that I got him to send them to me . He mostly uses a white typewriter font on black background with just one or a few words per slide. In the spirit of remix, I plan to see how much of this look and feel I can appropriate for my own work[2].

update By coincidence, just after I finished this the latest London Review of Books arrived, complete with a lengthy article on the monopolistic practices of the London booksellers in the 18th century, a point also addressed by Lessig. Unfortunately, the article itself is subscriber-only

fn1. This reminds me that my CC licence got lost in the shift from Movable Type. Another job to be done.

fn2. I’ve just decided to make the shift from Powerpoint to Keynote and Lessig mentioned he was doing the same. I’ll be trawling the web for examples.

I would have thought that the Murdoch papers’ refusal to run ads for Outfoxed was politically unwise. Providing an excellent example of censorship or self censorship for the next time when Murdoch is trying to spread his wings.